Family court judge moves Supreme Court after Delhi High Court rap for citing 'non-existent' law in judgment

A Delhi judicial officer has moved the Supreme Court, challenging adverse remarks made against him by the Delhi High Court while setting aside one of his divorce judgments.

A Bench of Justices Vikram Nath and Sandeep Mehta heard the matter today and agreed to examine whether the strictures passed against the Family Court judge were warranted. However, the Court declined to stay the High Court’s observations for now.

"He was exercising Article 142 powers (conferred only on Supreme Court) while sitting as a district judge," the Court remarked while issuing notice in the plea moved by judge Harish Kumar.

The case arises from a judgment delivered by Kumar when he was posted as a Family Court judge in the Patiala House Courts, Delhi.

He had granted a divorce in a matrimonial dispute by treating cross-petitions seeking dissolution as deemed consent under Section 13B of the Hindu Marriage Act (HMA), instead of adjudicating them on contested grounds.

The Delhi High Court, while allowing an appeal under Section 19 of the Family Courts Act, not only set aside the decree but also passed sharp personal remarks against Kumar.

It accused him of conflating distinct statutes, relying on a “non-existent” statutory provision under the Special Marriage Act (SMA), and misunderstanding basic legal principles. It also directed that he undergo a comprehensive refresher training programme in matrimonial law under the aegis of the Delhi Judicial Academy before adjudicating further matrimonial matters.

The judge has now moved the Supreme Court against these strictures by the High Court.

Before the Supreme Court, Kumar's counsel argued that the strictures had caused serious damage to his reputation and career. He clarified that he was not challenging the High Court’s decision on merits, but only the personal and disparaging remarks made against him.

It was further submitted that the remarks were passed against Kumar without issuing him notice or affording him an opportunity to explain. His counsel relied on past Supreme Court decisions cautioning High Courts against making personal comments on judicial officers while exercising appellate jurisdiction.

The Supreme Court today was initially hesitant to intervene in the matter, remarking that the High Court has merely ordered Kumar to undertake a refresher course. However, the top Court eventually issued notice on the plea.

The background of the dispute shows that Kumar had, in several cases between 2023 and 2025, adopted an approach where, if both spouses sought dissolution of marriage, though on contested grounds, he treated their respective prayers as consent and granted divorce under Section 13B HMA at the first instance.

His reasoning was that this would avoid prolonged litigation and bring lasting closure to the parties.

The Delhi High Court disagreed. It held that statutory requirements under the HMA and the SMA could not be blended, and that procedural flexibility under the Family Courts Act could not override substantive mandates of matrimonial law. In one instance, it noted that Kumar had referred to Section 28A of the SMA, which does not exist in the statute book.

The High Court described this as a “troubling lack of understanding of basic legal principles” and observed that such an approach undermined the integrity of the adjudicatory process.

It also recorded that although higher courts should ordinarily refrain from making personal remarks against subordinate judicial officers, the conduct in the case warranted comment.

“It is incomprehensible how a Judicial Officer of the rank of a Family Court Judge could rely upon a non-existent statutory provision to grant a decree of divorce. Not only did he erroneously import the SMA into a petition filed under the HMA but he then relied upon an entirely non-existent section of the SMA dealing purportedly with the irretrievable breakdown of marriage ... The manner in which the learned Family Court Judge has proceeded reveals a serious misapprehension of the limits of judicial authority and undermines the integrity of the adjudicatory process," the High Court said.

In his plea before the Supreme Court, Kumar contended that the High Court had travelled beyond the scope of the appeal before it and referred to five other judgments decided by him, though the appeal concerned only one case.

He argued that any error in legal interpretation ought to have been corrected in appeal, without casting aspersions on his competence or directing training without notice.